Wis. Tel. Co. v. City of Oshkosh

• Decision Date: 16 December 1884
• Citation: 62 Wis. 32,21 N.W. 828
• Parties: WISCONSIN TELEPHONE CO. v. CITY OF OSHKOSH.
• Court: Wisconsin Supreme Court

62 Wis. 32

21 N.W. 828

WISCONSIN TELEPHONE CO.

v.CITY OF OSHKOSH.

Supreme Court of Wisconsin.

Filed December 16, 1884.

Appeal from circuit court, Winnebago county.

It appears from the complaint, in effect, that October 29, 1880, Athearn had, by permission, consent, and approval of the defendant, used and operated a telephone line in the city, and had erected poles in the streets and alleys thereof, on which were placed the necessary wires to use in the business, and continued to hold and operate the same until March 21, 1881, when the plaintiff, having become incorporated, became the owner thereof by purchase from Athearn; that under chapter 345, Laws 1883, the plaintiff obtained a license from the state to operate its line and conduct its business throughout the state during the year 1883; that prior to that act the plaintiff had established its line, office, and business in Oshkosh, and had by its wires connected its subscribers in that city with many other cities and villages in the state; that June 5, 1883, the “defendant, well knowing the premises, but with the design and intent to collect an unjust and illegal tax from the plaintiff, passed an ordinance purporting to give to the plaintiff the right to erect or maintain its telephone lines upon poles or posts in certain streets and public alleys of the city in such a manner as not to create obstruction to the free passage of people traveling thereon; and also to run lines of telephone wires from such poles or posts along, through, over, and across such streets and public alleys, so far as the right of the city was concerned: provided, the plaintiff would first pay the city $300 for each and every year that the same should be so maintained; and that if it failed to so pay within 10 days after the ordinance was published, or within 10 days after May 1st, in any succeeding year, then the city should cause such poles and posts to be taken down and removed; that the plaintiff refused to comply with the ordinance until the defendant proceeded to cut down and remove such poles, when the plaintiff was compelled to, and did, under protest, July 3, 1883, comply with and pay the $300 so illegally exacted; that thereafter, and August 24, 1883, the plaintiff demanded the repayment of the amount so paid, which was refused, and this action was brought to recover the same. The answer was to the effect that the defendant admitted the incorporation and the organization of the plaintiff, but denied any knowledge or information sufficient to form a belief as to whether the plaintiff had a license from the state, and alleged that the Athearn ordinance was made without power or authority, and was therefore unlawful; that in any event it was repealed by the ordinance of June, 1883, and repeated the enactment of that ordinance, the refusal to pay as required, the pulling down of the poles, and the cutting of the wires in consequence of such refusal; that the city had exclusive control and management of such streets and alleys, and the right to abate and remove all obstructions therefrom; that such poles were obstructions, and that such payment had been exacted for the right and privilege of so using and enjoying such streets and alleys for the purposes of the plaintiff's said business. The plaintiff demurred to the answer upon the ground that it did not state facts sufficient to constitute a defense, and from the order sustaining the same the defendant brings this appeal.Finches, Lynde & Miller, for respondent.

John W. Hume, for appellant.

CASSODAY, J.

The telephone is a new invention; so recent, that even our statutes, as revised in 1878, fail to mention it. By what authority is it at large in Oskosh? May that municipality legally exact a license fee of $300 a year for the privilege of its remaining? This is the question that confronts us. The corporate existence of the plaintiff, not having been specifically denied, stands as admitted. Section 4199, Rev. St.; Crane Bros. Manuf'g Co. v. Morse, 49 Wis. 370; S. C. 5 N. W. REP. 815. Of course, the corporation was necessarily formed, and the charter necessarily obtained, under chapter 86, Rev. St. As indicated, there is no express mention of any telephone therein. Section 1771 of that chapter does expressly authorize the formation of corporations for the “purpose” of “building and operating telegraph lines, or conducting the business of telegraphing in any way; * * * or for any lawful business or purpose whatever, except” certain classes of business specifically mentioned. Precisely the same language is preserved in the amendment to that section. Chapter 220, Laws 1883. Such corporation, “to build and operate telegraph lines, or conduct the business of telegraphing,” is especially authorized to “conduct and maintain such lines, with all necessary appurtenances, from point to point upon or along or across any public road, highway, or bridge, or any stream or body of water, or upon the land of any owner consenting thereto, and from time to time extend the same at pleasure; and may connect and operate its lines with the lines of any person, company, or corporation without this state; and charge reasonable tolls for the transmission and delivery of messages. But no such telegraph line, or any appurtenance thereto, shall at any time obstruct or incommode the public use of any road, highway, bridge, stream, or body of water.” Section 1778. In addition to the special powers so given, every such corporation, when so organized, is made a body corporate by the name designated in its articles, and has the powers of a corporation, conferred by the statutes, necessary or proper to conduct the business, or accomplish the purposes, prescribed by its articles, but no other or greater; and may take, manage, hold, convey, lease, or otherwise dispose of, at pleasure, such real and personal property, of whatever kind, as shall be necessary to its business or purposes, or to the protection or benefit of its property held or used for the corporate business or purposes. Section 1775, Rev. St.

It is urged that the power thus expressly given to form and organize corporations for the purpose of building and operating telegraph lines, or conducting the business of telegraphing in any way, includes the power of forming and organizing corporations for the purpose of building and operating telephone lines, or conduct the business of telephoning in any way. Of course there is a distinction between the two classes of business, but in almost every respect they are very similar, if not identical. Each of them must erect its poles or posts, and upon the tops of them attach its lines of wire from point to point. Each must almost necessarily enter upon, along, or across public roads, highways, streams, bodies of water, and upon the lands of individuals, for the purposes mentioned. In these respects they seem to be identical. One may require more lines of wire than the other, but we are not aware of any other distinction outside of their offices or places of operation distinguishable to the naked eye. It is these indistinguishable features alone that the city of Oshkosh had to deal with. Possibly there may be a marked distinction in the varying intensity of the electric currents in the one case and in the other at the point of transmission or receiving, or even at points along the line; but such difference, if it exists, hardly concerns the question here presented.

As for the difference in the mode of communication by means of a telegraphic and telephonic apparatus, see Attorney General v. Edison Telephone Co. of London, L. R. 6 Q. B. Div. 244. In that case Mr. STEPHENS, one of the judges of the exchequer division of the high court of justice, who, unlike most American judges, seems to have sufficient time not only to satisfy his own...